Delaware Department of Justice
Attorney General
Kathy Jennings

02-IB08: FOIA Complaint Against Sussex County

Civil Division- Kent County April 4, 2002    02-IB08
Mr. Wolfgang von Baumgart
37 Commanche Circle
Millsboro, DE 19966
RE: Freedom of Information Act Complaint Against Sussex County
Dear Mr. Baumgart:
On November 5, 2001, our Office received your complaint under the Freedom of Information Act (“FOIA”) alleging that Sussex County (“the County”) violated the open meeting requirements of FOIA. Specifically, you allege that county officials discussed and developed a redistricting ordinance in meetings that were not open to the public.
By letter dated November 6, 2001, we asked the County to respond in writing to your complaint within ten days. On November 15, 2001, we received the County’s response. On November 26, 2001, we received your rebuttal to the County’s response. On January 3, 2002, we asked for and obtained additional information from the County.
By statute, the County has a Department of Law, headed by a County Attorney, who provides “legal advice to the county government, County Administrator, and all county departments, boards, offices and agencies.” 9 Del. C. § 7005(a)(1). The current County Attorney is Eugene H. Bayard, Esquire.
According to the County, the Council “directed the County Attorney to prepare an ordinance reapportioning each of the five councilmanic districts” on the basis of the U.S. 2000 census. “In the course of preparing the necessary ordinance for the redistricting of Sussex County, Mr. Bayard secures information from and consults with those persons whose knowledge and experience can provide him with the best available data to perform the tasks assigned to him. Included in this process were Kenneth McDowell, Chairman, Sussex County Board of Elections” and Dick Carter, “an independent consultant retained by Mr. Bayard.” At a meeting of the County Council on September 25, 2001, Mr. Bayard presented a draft redistricting ordinance. According to the 2000 census, Sussex County has a population of approximately 166,000 people. The draft ordinance proposed dividing the population evenly between the five councilmanic districts.
The Council published notice of a meeting for October 30, 2001 to discuss the proposed re-districting ordinance (the notices appeared in The News Journal and the Delaware State News on October 1, 2001). You do not dispute that the Council satisfied the notice requirements of FOIA for the October 30 hearing by posting notice at the Council’s regular meeting place.
At the October 30, 2001 meeting of the Council, Mr. Bayard explained the basis for the re-districting ordinance.
The Proposed Councilmanic Districts are based on dividing the population by five and trying to establish five districts with approximately 31,000 people in each district. The resulting districts provide for two councilmen for the inland bay areas and three councilman for the coastal area. It was emphasized that the redistricting was done on the basis of population only.
You and other members of the public attended the meeting on October 30, 2001 and had an opportunity to comment on the proposed re-districting ordinance. On behalf of the Independent Party of Delaware, you observed that “to improve the quality and representative diversity of Sussex County government, the maximum number of constituents per councilmanic district should not exceed 25,000,” and you suggested increasing the number of council seats from five to seven. You stated that “in the absence of a seven council member structure, the option of strict east/west delineation of councilmanic district boundaries needs further exploration.”
After public discussion, the Council voted 4-0 (with one absence) to adopt the re-districting ordinance as drafted by Mr. Bayard.
Relevant Statutes
FOIA defines a “public body” to include any “advisory board,” “group,” or “panel” “established by any body established by the General Assembly “or “appointed by any body or public official . . . which . . . is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations.” 29 Del. C. § 10002(a).
FOIA requires that “[e]very meeting of all public bodies shall be open to the public except those closed” for executive session for one of nine reasons authorized by the statute. Id. § 10004(a).
Your complaint requires our Office to determine the kinds of advisory groups that are subject to FOIA. Only one Delaware case addresses this issue, Guy v. Judicial Nominating Commission, Del. Super., 659 A.2d 777 (1995) (Ridgely, Pres. J.). In Guy, the Superior Court held that the Judicial Nominating Commission was a “public body” under FOIA because it was established by executive order “to make recommendations” to a “public official” (the Governor). 659 A.2d at 781. The public records requirements of FOIA, however, do not apply to the Judicial Nominating Commission because communications between the JNC and the Governor are exempt from disclosure by executive privilege. See 29 Del. C. § 10002(d)(6).
Since Guy did not involve the open meeting requirements of Delaware’s FOIA, we look to the law in other states and federal law for guidance.
A. State Cases
In Town of Palm Beach v. Gradison, Fla. Supr., 296 So.2d 473 (1974), the town council hired a private firm to revise the town zoning ordinances. The council also appointed a citizens planning commission to advise the consulting firm. The Florida Supreme Court held that the citizens committee was a “buffer lay group” that served “to make tentative decisions guiding the zoning planners and advising the Council as to their ultimate zoning ordinances.” 296 So.2d at 474. The court distinguished civic organizations “such as a taxpayer’s league, better government league, [or other] civic association” which are formed voluntarily and not at the direction of the government. Id. at 476. In contrast, the planning committee “was conceived and formed by the Town Council for the purpose of working with the planning consultant.” Id. “The preponderant interest of allowing the public to participate in the conception of a proposed zoning ordinance is sufficient to justify the inclusion of this selected subordinate group within the provisions of the government in sunshine law.” Id.
In Mayor & Aldermen of City of Vicksburg v. Vicksburg Printing & Publishing Co., Miss. Supr., 434 So.2d 1333 (1983), the city passed an ordinance establishing a citizens planning commission to meet with two expert city planners to consider extending the corporate boundaries of the city. The Mississippi Supreme Court held that the planning commission was subject to the open meeting law even though its powers were advisory only. “The [commission] is an agency that plays a substantial role in making policy. That it is not exclusively responsible for approving annexations in no way denigrates the importance of its role in the formulation of city policy.” 434 So.2d at 1338.
In Lewiston Daily Sun, Inc. v. City of Auburn, Maine Supr., 544 A.2d 335 (1988), the city council voted to appoint a committee to investigate complaints about the city’s civil service commission. The committee consisted of seven persons having no connection with city government. The Maine Supreme Court rejected the argument that the open meeting law did not apply to the committee because of its ad hoc and temporary nature. “[I]t is clear that if the city council itself had investigated the Civil Service Commission the council’s meetings would have come within [FOIA’s] open meeting requirement. The council cannot avoid that requirement through its decision to delegate that investigatory function to another entity, created by the council expressly for that purpose, especially when as here that specially created entity maintains substantial and continuing links with the parent council.” 544 A.2d at 338.
In The Cincinnati Enquirer v. City of Cincinnati, Ohio App., 2001 WL 957466 (Apr. 24, 2001), an Ohio Appeals Court held that meetings of an urban design review board must be open to the public. “The UDRB, created by a motion of the Cincinnati City Council in 1964, is a body consisting of four architects and a chairperson. Its purpose is to review all new construction projects in the Cincinnati Central Business District that are a part of a contract between a developer and the city, and to make recommendations to and generally advise the Cincinnati City Manager on the acceptability of the developer’s plans.” Id. at p. 1.
For the open meeting law to apply in Delaware, a public body or public official must “establish” or “appoint” the advisory board, group, or panel. “Appoint” means the “designation of a person, by the person or persons having authority therefor, to discharge the duties of some office or trust.” Black’s Law Dictionary 128 (4th rev. ed. 1968). Unlike the cases discussed above, the County Council did not appoint a group of specific individuals to advise the Council on re-districting. Compare with Guy (Governor appointed eight of the nine members of the Judicial Nominating Commission). The Council did appoint the County Attorney to advise the Council on re-districting, but a single person cannot constitute an “advisory board,” “group,” or “panel” under FOIA because all those terms connote more than one person.
“Establish” means to “bring into being; to build; to constitute; to create; to erect; to form, to found; . . .” Black’s Law Dictionary 643 (4th rev. ed. 1968). The cases discussed above are distinguishable because the public body brought an advisory group into being by statute, ordinance, executive order, or formal resolution of the city council. In that sense, the County Council did not “establish” an advisory board or group on re-districting by motion or resolution. We do not believe, however, that the manner in which an advisory group comes into being is controlling, otherwise the open meeting law could be easily circumvented. The issue is further complicated because, under Delaware’s FOIA, a “public official” like the County Attorney, can”establish” an advisory group that is subject to the open meeting law, independent of any formal action taken by the County Council. See 29 Del. C. § 10002(a).
We turn, therefore, to federal law for a more helpful analytical framework.
B. Federal Advisory Committee Act
The Federal Advisory Committee Act (“FACA”) requires “that advisory committee meetings be open to the public” in order to “facilitate public monitoring of advisory committees, thereby reducing the likelihood that advisory committees can serve as secretive channels for special-interest access to agencies.” Holy Cross Neighborhood Association v. Julich, 106 F. Supp. 876, 881 (E.D. La. 2000). The act requires advisory committees to provide advance notice of their meetings, and to open them to the public in order “to open to public scrutiny the manner in which government agencies obtain advice from private individuals and groups.” Washington Legal Foundation v. American Bar Association, 648 F. Supp. 1353, 1358 (D.D.C. 1986).
The open meeting requirements of FACA apply to any “panel, task force, or other similar group” which is “established or utilized by one or more agencies.” 5 U.S.C. § 3(2). In Byrd v. United States Environmental Protection Agency, 174 F.3d 239, 245 (D.C. Cir. 1999), the EPA contracted with a private environmental consulting firm to select a panel of 24 scientists to discuss the carcinogenic effects of benzene, and then submit a report to the EPA summarizing the panel’s conclusions and recommendations. The D.C. Circuit held that FACA did not apply to the panel of scientists. The EPA did not exercise “significant influence” over the panel because: the private consulting firm, not the EPA, selected the members of the panel; the EPA did not control its agenda or meetings; and the EPA did not participate in the preparation of the consulting firm’s final report.
In Association of American Physicians & Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993), the President appointed a Task Force on National Health Care Reform. The Task Force in turn created working groups with members from government and the private sector to develop alternative health care policies. All of the meetings of the working groups were closed to the public. The Task Force was exempt under FACA because it was comprised wholly of full-time officers and employees of the federal government. See 5 U.S.C. § 3(2)(iii). The D.C. Circuit therefore focused on the relationship between the President and the working groups: did they provide advice to the President, or merely gather information to be passed to the Task Force?
Federal regulations provide that FACA does not apply where “the purpose of utilizing the [advisory] group” is not “to obtain consensus advice or recommendations.” 41 C.F.R. § 101-6.1004(i) (1992). “However, agencies should be aware that such a group would be covered by the Act when an agency accepts the group’s deliberations as a source of consensus advice or recommendations.” American Physicians, 997 F.2d at 912.
“The point, it seems to us, is that a group is a FACA advisory committee when it is asked to render advice or recommendations, as a group, not as a collection of individuals.” Id. at 913. As a group, advisory committees “not only provide ideas to the government, but also often bestow political legitimacy on that advice.” Id. In effect, these “committees also possess a kind of political legitimacy as representative bodies.” Id. “But committees bestow these various benefits only insofar as their members act as a group. The whole, in other words, must be greater than the sum of the parts.” 997 F.2d at 913.
The critical factor in determining whether an advisory group must meet in public becomes the formality and structure of the group.
When we examine a particular group or committee to determine whether FACA applies, we must bear in mind that a range of variations exist in terms of the purpose, structure, and personnel of the group. Perhaps it is best characterized as a continuum. At one end one can visualize a formal group of a limited number of private citizens who are brought together to give publicized advice as a group. That model would seem covered by the statute regardless of other fortuities such as whether the members are called “consultants.” At the other end of the continuum is an unstructured arrangement in which the government seeks advice from what is only a collection of individuals who do not significantly interact with each other. That model, we think, does not trigger FACA.
997 F.2d at 915.
In Nader v. Baroody, 396 F. Supp. 1231 (D.D.C. 1975), a Presidential assistant held bi-weekly meetings with a changing group of business leaders to solicit their views on trade and the economy. FACA’s “broad, imprecise definition” of an “advisory committee” permitted “a reading which could include the ad hoc groups here involved as well as any other less formal conferences of two or more non-government persons to advise the President.” 396 F. Supp. at 1232. But the district court held that “the Act was not intended to apply to all amorphous, ad hoc group meetings.” Id. at 1234. The Act only applied to “groups having some sort of established structure and defined purpose” which “an executive department or official has directed to make recommendations on an identified governmental policy for which specified advice was being sought.” Id. The business leaders who met at the White House “were not formally organized and there is little or no continuity. Nor is there any suggestion that the lack of formal organization arises out of the purpose to evade the statute.” Id.
Using these federal authorities as a model, we find that the County Council did not establish an advisory group consisting of the County Attorney, the Chairman of the County Board of Elections, and a private consultant as contemplated by Delaware’s FOIA. There is no evidence that the Council selected the persons the County Attorney might consult with; that the Council had significant influence over the meetings between the County Attorney and individual consultants; or that the Council participated in the preparation of the County Attorney’s draft re-districting ordinance.
Unlike the consulting firm in Byrd, the County Attorney is a “public official” who can establish or appoint an advisory group that is subject to the open meeting law. Consequently, we must also analyze the relationship between the County Attorney and the persons he consulted in drafting the re-districting ordinance.
We find that the meetings between the County Attorney and others to discuss re-districting were not subject to FOIA because they were part of “an unstructured arrangement” in which the County Attorney sought “advice from what is only a collection of individuals who [did] not significantly interact with each other.” Association of American Physicians, 997 F.2d at 914.
This conclusion is consistent with our decision last year in Att’y Gen. Op. 01-IB15 (Oct. 23, 2001), where we determined that meetings between a county administrator and his staff were not meetings of a “public body” that must be open to the public. The exemption does not apply to external advisory groups established by a public body or official to render advice or recommendations as a group to government. See Guy v. Judicial Nominating Commission, supra.
For the foregoing reasons, we find that the County Council did not establish or appoint an advisory group subject to FOIA to make recommendations to the County Council about re-districting. We also find that the County Attorney, as a public official, did not violate the open meeting law by consulting with other individuals in private because he did not use their discussions to obtain consensus advice or recommendations on re-districting to present to the County Council.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
Malcolm S. Cobin
State Solicitor
cc: The Honorable M. Jane Brady
Attorney General
Dennis L. Schrader, Esquire
Phillip G. Johnson
Opinion Coordinator

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